Citation Nr: 18151538 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 17-62 472 DATE: November 20, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for left hip degenerative joint disease is remanded. Entitlement to service connection for right hip degenerative joint disease is remanded. Entitlement to service connection for left knee degenerative joint disease is remanded. Entitlement to service connection for right knee degenerative joint disease is remanded. Entitlement to service connection for left ankle degenerative joint disease is remanded. Entitlement to service connection for right ankle degenerative joint disease is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, tinnitus is etiologically related to his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1971 to May 1973. 1. Entitlement to service connection for tinnitus Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. Therefore, the Veteran is competent to attest to the date of onset of his tinnitus symptoms, i.e., ringing in the ears. Moreover, tinnitus-or, ringing in the ears-is the type of disability that may be established on the basis of lay evidence as it is subjective in nature. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran contends that his bilateral tinnitus is related to his military service and has been continuous since his military service. See August 2016 Dr. C.M.Q. private treatment records. The Veteran maintains that his tinnitus is secondary to high noise exposure. Id. The Veteran’s specialty title was that of a light weapons infantryman which is consistent with acoustic trauma. See DD214. The Veteran submitted a private medical opinion from Dr. C.M.Q which concluded that the Veteran’s sensorial disorders are more probable than not secondary to his military service performance. The Board finds the Veteran’s statements as to the onset of his tinnitus in service to be competent and credible. Therefore, resolving reasonable doubt in the Veteran’s favor, service connection for tinnitus is established. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran contends that his back disability is related to service. To date, a VA examination has not been conducted. As the Veteran’s private medical records show findings of chronic back pain and chronic myositis para-lumbar spine muscles which may be related to service and the Veteran submitted a private medical opinion indicating that the Veteran’s musculoskeletal disabilities are more probable than not secondary to the Veteran’s military service, the Board finds that the low threshold standard for when the Board should order a VA examination to secure a medical opinion is met. McLendon v. Nicholson, 20 Vet. App. 27 (2006). 2. Entitlement to service connection for left and right hip degenerative joint disease is remanded. The Veteran contends that his bilateral hip disability is related to service. To date, a VA examination has not been conducted. As the Veteran’s private medical records show findings of degenerative joint disease of the hips which may be related to service and the Veteran submitted a private medical opinion indicating that the Veteran’s musculoskeletal disabilities are more probable than not secondary to the Veteran’s military service, the Board finds that the low threshold standard for when the Board should order a VA examination to secure a medical opinion is met. McLendon v. Nicholson, 20 Vet. App. 27 (2006). 3. Entitlement to service connection for left and right knee degenerative joint disease is remanded. The Veteran contends that his bilateral knee disability is related to service. To date, a VA examination has not been conducted. As the Veteran’s private medical records show findings of degenerative joint disease of the knees which may be related to service and the Veteran submitted a private medical opinion indicating that the Veteran’s musculoskeletal disabilities are more probable than not secondary to the Veteran’s military service, the Board finds that the low threshold standard for when the Board should order a VA examination to secure a medical opinion is met. McLendon v. Nicholson, 20 Vet. App. 27 (2006). 4. Entitlement to service connection for left and right ankle degenerative joint disease is remanded. The Veteran contends that his bilateral ankle disability is related to service. To date, a VA examination has not been conducted. As the Veteran’s private medical records show findings of degenerative joint disease of the ankles which may be related to service and the Veteran submitted a private medical opinion indicating that the Veteran’s musculoskeletal disabilities are more probable than not secondary to the Veteran’s military service, the Board finds that the low threshold standard for when the Board should order a VA examination to secure a medical opinion is met. McLendon v. Nicholson, 20 Vet. App. 27 (2006). 5. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss. The Veteran asserts that his bilateral hearing loss is the result of acoustic trauma during active duty. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s specialty title was that of a light weapons infantryman which is consistent with acoustic trauma. See DD214. The Veteran was afforded a VA examination in June 2016. The Veteran expressed that he has recurrent ear infections which he self-diagnosed and self-treats. The Veteran’s audiological evaluation revealed puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 30, 30, 30,20, and 25 dB respectively. The Veteran’s audiological evaluation revealed puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 35, 35, 30,25, and 30 dB respectively. The examiner opined that the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service. The examiner expressed that the Veteran’s audiograms during active service were within normal limits and that there was no audiogram found at separation. The examiner expressed that VA medical records were also reviewed and noted that there were no complaints of hearing loss or services documented while in active service or soon after release from active duty. The examiner reported that VA and other medical records were silent as to any audio treatment or care for hearing loss until the current VA examination, merely 43 years after separation from the military. The examiner stated that it is well known that prolonged exposure to noise of high intensity and short duration, such as military type, could cause permanent damage in the structures of the inner ear, resulting in irreversible hearing loss. The examiner expressed that hearing difficulties appear either immediately after a noise trauma or gradually, during the noise exposure period. The examiner noted that no retroactive effect is expected to be seen as to the Veteran’s hearing loss with onset so many years after being exposed to military noise. Therefore, the examiner concluded that the Veteran’s hearing loss was not caused by or a result of his exposure to noise during military service and that it is most probable that the Veteran’s bilateral hearing loss is related to combined etiologies which may predispose the Veteran to gradually develop hearing loss. The Veteran was afforded another VA examination in November 2016. The Veteran’s audiological evaluation revealed puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 30, 30, 25,20, and 25 dB respectively. The Veteran’s audiological evaluation revealed puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 30, 30, 25,25, and 30 dB respectively. The examiner expressed that during the VA evaluation, the Veteran reported no history of hearing loss, but that he recalls some ear infections. The examiner noted that no evidence was found in the Veteran’s medical records showing complaints of hearing loss or tinnitus while in active service, or within one year after release from service. The examiner noted that the first evidence of hearing loss was 43 years after release from active service. The examiner noted that actual hearing loss is more likely to be the result of a natural aging process, to hereditary factors, to post-service noise exposure, or a combination of all these factors. Therefore, the examiner concluded that the Veteran’s hearing loss is less likely than not related to exposure to hazardous noise during his military service from May 1971 to May 1973. Medical evidence from Dr. C.M.Q. dated August 18, 2016 documented a diagnosis of bilateral hearing loss and Dr. C.M.Q. concluded that the Veteran’s sensorial disorders are more probable than not secondary to military service performance. The Veteran submitted a buddy statement from his spouse. She expressed that she met the Veteran before he was recruited to the United States Army and that the Veteran was mentally and physically healthy. She stated that the Veteran was a different person when he came back and that he could not hear well. After review of the evidence of record, the Board finds that the VA examiner’s opinions are inadequate. The June 2016 and November 2016 VA examiners did not discuss the Veteran’s report of noise exposure in service nor did they discuss the Veteran’s buddy statements indicating that the Veteran experienced hearing difficulties after returning from service. The examiners based their conclusions on the basis of no complaints of hearing loss documented while in active service. The Board notes that the absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). As noted above, the determination of whether the Veteran currently has a hearing loss disability is governed by 38 C.F.R. § 3.385. Here, during the appeal period, the Veteran was diagnosed with bilateral hearing loss as defined by VA regulations. See June 2016 VA examination. Therefore, the current disability requirement is met. As for the second element of service connection, the Veteran reported that he was exposed to military noise exposure. As the Veteran’s DD Form 214 shows that he served as a light weapons infantry man, his statements are corroborated. As for the third element of service connection, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran’s hearing loss is necessary. See 38 C.F.R. § 4.2. This VA examiner’s opinion should include whether the Veteran’s hearing loss is related to his active duty service, to include in-service noise exposure. 6. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that his erectile dysfunction is related to service. To date, a VA examination has not been conducted. The Veteran’s private medical records show findings of erectile dysfunction which may be related to service, to include as secondary to medication. Based on the theory of secondary service connection, the Board finds that the Veteran’s claim of service connection for erectile dysfunction is inextricably intertwined with the remanded claims for service connection. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue) Accordingly, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris. 7. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that his acquired psychiatric disorder is related to service. The Veteran submitted a buddy statement from his spouse. She expressed that she met the Veteran before he was recruited to the United States Army and that the Veteran was mentally and physically healthy. She stated that the Veteran was a different person when he came back from service. She stated that the Veteran had a problem with a neighbor due to loud music and the Veteran went to his home with a machete and injured his neighbor. In a May 2008 private psychiatric treatment note, the examiner noted that on the Veteran’s initial visit in January 2007, the Veteran presented symptoms such as sadness, constant anxiety, anger, poor impulse control, pessimistic thought, episodes of explosive behavior, recurrent thoughts of death, isolation, insomnia, loss of appetite with weight loss, and social, work, and family dysfunction. The examiner diagnosed the Veteran with severe recurrent major depression with psychotic features dysthymia. In an August 2016 private medical opinion, Dr. C.M.Q. expressed that the Veteran’s psychiatric disorders are more probable than not secondary to the Veteran’s military. The Veteran was afforded a VA examination in January 2017. The examiner diagnosed the Veteran with cannabis induced mood disorder. The examiner opined that the Veteran’s cannabis induced mood disorder has no temporal or circumstantial link with the military stressors endured. The Board finds that the January 2017 VA examination is inadequate. The Board notes that the Veteran has been diagnosed with many psychiatric disorders to include major depression and no opinion was given to address the etiology of the Veteran’s psychiatric diagnoses. In addition, the examiner did not discuss the buddy statements in the record indicating that the Veteran’s mental health was not the same when he returned from service. Thus, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran’s acquired psychiatric disorder is necessary. See 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s back disability. The examiner should opine as to whether it is at least as likely as not that the Veteran’s back disability is causally or etiologically related to his military service, to include any injury or symptomatology therein. In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bilateral hip disability. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left and/or right hip disability that is causally or etiologically related to his military service, to include any injury or symptomatology therein. In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bilateral knee disability. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left and/or right knee disability that is causally or etiologically related to his military service, to include any injury or symptomatology therein. In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bilateral ankle disability. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left and/or right ankle disability that is causally or etiologically related to his military service, to include any injury or symptomatology therein. In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hearing loss. The examiner should provide the following opinion: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hearing loss is related to his time in service, specifically to include military noise exposure in service? In providing this opinion, the examiner should take into account that the Veteran’s specialty title was that of a light weapons infantryman, which is consistent with acoustic trauma. The examiner is advised that the absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The examiner is advised that the requirement of a “current disability” is satisfied if a disorder is diagnosed at any time during the pendency of the appeal; even though the disability may resolve prior to adjudication of the claim. In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s erectile dysfunction. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current erectile dysfunction disability that is causally or etiologically related to his military service, to include any injury or symptomatology therein. The examiner should opine as to whether it at least as likely as not that the Veteran’s erectile dysfunction was caused by or was chronically worsened (aggravated beyond its natural progression) by any medication used for any other disabilities such as the Veteran’s back disability, bilateral knee disability, bilateral ankle disability, bilateral hip disability, and psychiatric disabilities? In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current acquired psychiatric disorder that is causally or etiologically related to his military service. In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the requirement of a “current disability” is satisfied if a disorder is diagnosed at any time during the pendency of the appeal; even though the disability may resolve prior to adjudication of the claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D., Associate Counsel